Mr. Wharton to Sir Julian Pauncefote.
Washington, September 7, 1891.
My Dear Sir Julian: Your private and unofficial note of August 26 was duly received, and I desire now to reply to it in the same private and unofficial manner. The President is unable to see how the damage clause last proposed by him can be held to imply an admission on the part of Great Britain “of a doctrine respecting” the liability of governments for the acts of their nationals or other persons sailing under their Hag on the high seas which is not warranted by international law. The proposition was expressly framed so as to submit to the arbitrators the question of the liability of Great Britain for the acts of vessels sailing under its flag. It did not assume a liability, but was framed expressly to avoid this objection, which had been urged against the previous proposal. I quote from my note of July 23:
The United States might well insist that Her Majesty’s Government should admit responsibility for the acts of the Canadian sealers, which it has so directly encouraged and promoted, precisely as in the proposal the United States admits responsibility for the acts of the revenue vessels. But, with a view to remove what seems to be the last point of difference in a discussion which has been very much protracted, the President is willing to modify his proposal, and directs me to offer the following.
The claim of the United States was stated in my note of July 23, accompanying the proposal, and the President does not see how the claims of the respective Governments could be more fairly or fully submitted. This Government proposes to submit to the arbitrators the question whether Great Britain is liable for the injury done to the seal fisheries, the property of the United States, by the Canadian vessels that have, under the stimulation and support of the British Government, been for several years engaged in the Behring Sea. The proposal of this Government was that the arbitrators should consider and decide such claims in accordance with justice and equity and the respective rights of the high contracting parties.
The President is unable to accept the last suggestion which you make in your note, as it seems to him to be entirely ineffectual. The facts connected with the seizure of Canadian sealers by the revenue vessels of the United States, on the one hand, and with the invasion of the sea and the taking of seals by the Canadian sealers on the other, are well known, and doubtless could be agreed upon by the respective Governments without difficulty. It is over the question of liability to respond in damages for these acts that the controversy exists, and the President can see no other course for this Government than to insist upon the submission of the question of the liability of Great Britain for the acts it complains of to arbitrators. This Government does not insist that Great Britain shall admit any liability for the acts complained of, but it may well insist, if this arbitration is to result in any effectual settlement of the differences between the two Governments, that the question of Great Britain’s liability shall go to the arbitrators for decision.
If you have any suggestions to make in support of the objection that the proposal made by the President assumes a liability on the part of Great Britain, the President will be very glad to receive them, and, if necessary, to reconsider the phraseology; but, upon a careful and critical examination of the proposition, he is unable to see that the objection now made has any support in the terms of the proposal.
I am, etc.,